The Endangered Species Acts—Tools of the Trade for Protecting Species Diversity and Forest Health

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Monday, April 6th, 2015

Pacific-Fisher_Bethany-Weeks-300x200A brief primer on the federal Endangered Species Act and the California Endangered Species Act

In the time of the Anthropocene, human activities have triggered what has become known as the “sixth great extinction period.” As far back as the 1970s, citizens and lawmakers alike saw this massive crisis unfolding and began to take steps towards reversing the downward spiral of species in California and across the United States.

In California, 1970 was a landmark year for historic environmental legislation, with the enactment of the California Environmental Quality Act (CEQA), and the original version of the California Endangered Species Act (CESA). Yes, believe it or not, CESA actually came before the current version of the Endangered Species Act. The modern version of CESA came into being in 1984, and was substantially amended into its current form in 1997.

In 1973, Congress enacted the modern version of the Endangered Species Act (ESA). In enacting the ESA, Congress found that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untampered by adequate concern and conservation.” The law was clear in its ambition; as the United States Supreme Court found, the “plain intent” of Congress in enacting the ESA “was to halt and reverse the trend toward species extinction, whatever the cost.” Similarly, in enacting CESA, the California state legislature found that untampered economic growth and development had driven certain species to extinction, and threatened to push other species toward extinction. As such, in enacting CESA, the California legislature declared that it is the policy of the state to “conserve, protect, restore, and enhance” threatened and endangered species in the state.

Both the ESA and CESA are founded on the basic underpinning of preventing “take” of threatened or endangered species listed pursuant to the Acts. “Take,” however, is defined differently in the ESA and CESA. The fundamental difference in the “take” definitions is that the ESA includes the terms “harm” and “harass” as prohibited actions, whereas CESA does not. The prohibitions of both acts apply to any “person” who may engage in a prohibited activity.

Both the ESA and CESA contain fundamental mandates for agencies responsible for implementation of the Acts to “conserve” species listed as threatened or endangered. In both Acts, the term “conserve” essentially means that agencies and governments must utilize any means necessary to protect and recover threatened or endangered species to the point where listing is no longer necessary.

EPIC’s efforts to defend biodiversity

Over the years, EPIC has successfully utilized the tools of the ESA to protect threatened and endangered species from damaging human activities, primarily logging of suitable habitat for old-growth dependent species. In EPIC’s first federal Endangered Species Act case, Marbled Murrelet v. Pacific Lumber Co. (1993), a federal court determined that Pacific Lumber’s plans to log 237 acres of contiguous old-growth forest in Owl Creek under would violate the ESA by harassing and harming the threatened marbled murrelet. This landmark decision was one of the first successful ESA cases brought against the timber industry. It halted Pacific Lumber’s march to log the old-growth in Owl Creek, and was a major impetus for the creation of the Headwaters Forest Agreement.

Today, EPIC continues to utilize the tools of both the ESA and CESA to protect and conserve species and their habitats. EPIC is currently a part of several listing petitions, both under the ESA and under CESA, to protect the Pacific fisher, the northern spotted owl, and the Humboldt marten. EPIC employs the tools of the ESA and CESA not only to prevent species’ extinctions, but also in order to achieve more long-lasting landscape-level changes in land management practices. These landscape level changes will help provide climate refugia and resilience, carbon sequestration, essential wildlife habitats and corridors between such habitats, and will serve to improve the overall health of our forests and other wild landscapes. By petitioning to list specific target species, EPIC seeks to not only conserve not only those individual species, but also other species that depend upon similar habitats, and also to protect, enhance, and restore our forested and wild landscapes.

Pacific fisher: In 2000, EPIC joined a number of conservation groups from across the Pacific Northwest to petition the U.S. Fish and Wildlife Service to list the Pacific fisher as an “endangered” species under the ESA. After over a decade of delays and subsequent litigation, the Service is now proposing to list the fisher as a “threatened” species. A final listing decision is anticipated for this fall.

Northern spotted owl: EPIC filed a listing petition with the California Fish and Game Commission in 2012 asking it to list the northern spotted owl as either a “threatened” or “endangered” species. In August 2013, the Fish and Game Commission determined that the petition provided sufficient information to lead it to the conclusion that the petitioned-action “may be warranted” and directed the California Department of Fish and Wildlife to promptly commence the conduct of a status review for the spotted owl in California. At this time, EPIC anticipates that the Department of Fish and Wildlife will produce its status report and submit it to the Fish and Game Commission in late June, 2015.

EPIC has also fought to strengthen the protections afforded to the owl under the federal ESA. In 2012, EPIC submitted a “reclassification” petition to the U.S. Fish and Wildlife Service, asking that it “uplist” the iconic northern spotted owl from a “threatened” to an “endangered” species. By uplisting the owl, EPIC aims to achieve greater protections through mitigation measures for federal, state, and private projects which may impact the species. Once again, a great deal of delay has ensued in the Service’s processing of EPIC’s petition. It is anticipated that the U.S. Fish and Wildlife Service will publish its initial 90-day finding on this petition in early April, 2015.

Humboldt marten: EPIC and the Center for Biological Diversity jointly submitted a petition to the U.S. Fish and Wildlife Service to list the elusive and highly-imperiled Humboldt marten as an “endangered” species in 2010. Again, lengthy delays ensued, and subsequent litigation has forced the Service to adhere to a stringent timeline for processing the marten listing petition. Unfortunately for the imperiled martin, on April 6th, the U.S. Fish and Wildlife Service announced a negative finding on the marten listing petition, meaning that the Service will not list the Humboldt marten as endangered. EPIC is now exploring additional options to get the marten the protection it needs.

Unfortunately, ESA and CESA are only effective when the agencies do their jobs, and decision-makers base their findings in sound science. All too often, decision-making bodies are made up of people who have political ties with the industries they are tasked with regulating, which ends up working out like the story of the fox guarding the hen house. EPIC will continue to advocate for the protection of wildlife and wild lands and will remain engaged with agencies and legislators to ensure that these species are given a fair chance at gaining protections that they depend on for their survival.